Acting District Ranger

(614) 469-6923/ FAX (614) 469-6919

December 28, 2005

Devela Clark

Acting District Ranger

WayneNational Forest

13700 US Hwy 33

Nelsonville, OH45764

Dear Mr. Clark:

This letter is in response to your December 22, 2005, request for site-specific review, pursuant to section 7 of the Endangered Species Act of 1973, as amended, regarding the proposed Burr Oak No. 6 Mine in MonroeTownship, PerryCountyon the Athens Ranger District of the Wayne National Forest (WNF). Theproposed coal mining activities on the WNF include excavation of the entrance pit for the underground mine, construction of a sediment pond, construction of the main access road and coal beltway, and construction of a secondary haul road. The overall project will impact approximately 8.5forested acres. This review represents a Tier 2 consultation, as explained below.

On September 20, 2001, the U.S. Fish and Wildlife Service (Service) issued a programmatic biological opinion (PBO) for the Wayne National Forest Land and Resource Management Plan (Forest Plan). This PBO established a two-tiered consultation process for Forest Plan activities, with issuance of the programmatic opinion being Tier 1 and all subsequent site-specific project analyses constituting Tier 2 consultations. Under this tiered process, the Service will produce “tiered” biological opinions when it is determined that site-specific projects are likely to adversely affect federally listed species. When may affect, not likely to adversely affect determinations are made, we will provide written concurrence and section 7(a)(2) consultation will be considered completed for those site-specific projects.

In issuing the PBO (Tier 1 biological opinion), we evaluated the effects of all Forest Service actions outlined in your Biological Assessment on the Federally listed Indiana bat (Myotis sodalis), bald eagle (Haliaeetus leucocephalus), American burying beetle (Nicrophorus americanus), northern monkshood (Aconitum noveboracense), running buffalo clover (Trifoliumstoloniferum), small whorled pogonia (Isotria medeoloides), Virginia spiraea (Spiraea virginiana), fanshell mussel (Cyprogenia stegaria), and the pink mucket pearly mussel (Lampsilis abrupta). We concurred with your determinations of not likely to adversely affect for northern monkshood (Aconitum noveboracense), running buffalo clover (Trifoliumstoloniferum), small whorled pogonia (Isotria medeoloides), Virginia spiraea (Spiraea virginiana), fanshell mussel (Cyprogenia stegaria), and the pink mucket pearly mussel (Lampsilis abrupta). We also concurred with your determination of likely to adversely affect for Indiana bat (Myotis sodalis), bald eagle (Haliaeetus leucocephalus), and American burying beetle (Nicrophorus americanus).

Your current request for Service review of theBurr Oak No. 6 Mineis a Tier 2 consultation under the September 20, 2001, PBO. We have reviewed the information contained in the Biological Evaluations (BEs), submitted by your office on December 22, 2005, describing the effects of the proposed project on federally listed species. You have indicated that the proposed action will have no effect on the fanshell mussel (Cyprogenia stegaria), pink mucket pearly mussel (Lampsilis abrupta), bald eagle (Haliaeetus leucocephalus), northern monkshood (Aconitum noveboracense), and Virginia spiraea (Spiraea virginiana), and thus, consultation is not required for these species for this project. We concur with your determination that the action may affect, but is not likely to adversely affect theAmerican burying beetle (Nicrophorus americanus),running buffalo clover (Trifoliumstoloniferum), and small whorled pogonia (Isotria medeoloides).

We concur with your determination that the action is likely to adversely affect the Indiana bat (Myotis sodalis). As such, this review focuses on determining whether: (1) this proposed site-specific project falls within the scope the Tier 1 PBO, (2) the effects of this proposed action are consistent with those anticipated in the Tier 1 PBO, and (3) the appropriate terms and conditions associated with the reasonable and prudent measures identified in the Tier 1 PBO are adhered to.

That is, this letter serves as the Tier 2 biological opinion for the proposed Burr Oak No. 6 Mine. As such, this letter also provides the level of incidental take that is anticipated and a cumulative tally of incidental take that has been authorized and exempted under the PBO.

Description of the Proposed Action

Pages 3-7 of your Wildlife BEand pages 1-6 of your Botanical BE include the location and a thorough description of the proposed action. The proposed coal mining activities on the WNF include clearing and grubbing 8.5 acres, constructing the main access road (50 ft by 250 ft) and secondary haul road (20 feet by 1,200 feet), construction of a sediment pond and diversion ditches (0.44 acres), excavation of the entrance pit for the underground mine, seeding and mulching all disturbed areas with native grasses, mining activities (for 30 years), reclamation with native hardwood species, and monitoring the reclamation. The action as proposed will remove 8.5 forested acres on the WNF. All tree removal will occur between September 15 and April 15 and a 25 foot forested buffer will be maintained along the unnamed tributary (Stream 1) to Dotson’s Creek.

Status of the Species

Species descriptions, life histories, population dynamics, status and distributions are fully described on pages 11-14 for the Indiana bat in the PBO and are hereby incorporated by reference. The closest known summer occurrence for the Indiana bat is 12.1 miles southwest of the proposed project. Fall swarming surveys detected a female Indiana bat at Monkey Hollow, approximately 11 milesfrom the proposed project site. Surveys specifically for this project occurred in 2004; no Indiana bats were captured. Since issuance of the Service’s PBO, additional surveys of the abandoned limestone mine in LawrenceCounty recorded 208 Indiana bats using the mine in 2003 and 333 Indiana bats in 2005. Rangewide status estimates of the Indiana bat based on hibernacula censuses in 2005 are up slightly from 2001 and 2003 at about 458,332 bats.

Environmental Baseline

Since the issuance of the PBO in 2001, the environmental baseline in the WNF has changed due to two notable events: 1) In February 2003, a major ice storm damaged over 47,000 acres of the WNF in the Ironton District. The storm damage to trees included: uprooting, splitting in two, and entire tree tops breaking off. The ice storm created a tremendous amount of new Indiana bat roosting habitat through creation of crevices and splits and through increased exfoliating bark through tree death; therefore, use of the area by Indiana bats is expected to remain stable or increase into the future, and 2) the completion of a consultation on the U.S. 33 Nelsonville Bypass Project in the Athens Unit of the Athens Ranger District that is expected to permanently remove 637 acres and fragment an additional 1,050 acres of habitat, much of which occurs on the WNF.

On the WNF, 7,827.51 acres have been applied towards your incidental take, of which only 1,477.03 acres are for projects that have been implemented. Much of this anticipated incidental take is for prescribed fire projects.

An additional 48.2 acres of surface impact are anticipated on private land in conjunction with the proposed Burr Oak No. 6 underground mine. These impacts will be addressed through consultation with the U.S. Office of Surface Mining and the state regulatory authority, Ohio Department of Natural Resources- Mineral Resource Management.

Effects of the Action

Based on our analysis of the information provided in your BEfor theBurr Oak No. 6 Mine, we have determined that the effects of the proposed action are consistent with those contemplated in the PBO.

Adverse effects to the Indiana bat from this project could occur due to the removal of potential roost trees. Although trees will be removed when Indiana bats are typically in hibernation, impacts to the Indiana bat may result in indirect effects due to loss of suitable roost trees. In addition, the proposed project will result in the loss of foraging habitat for at least 30 years. Although impacts may not be avoided, implementation of the terms and conditions associated with the reasonable and prudent measures (RPMs) provided on pages 36-40 in the programmatic biological opinion will minimize adverse effects. More specifically, the WNF will adhere to term and condition numbers 5, and 7 for this project. Additional protection and enhancement measures such as providing a forested stream buffer zone and reclaiming with native grass and hardwood tree species will be implemented.

Conclusion

We believe the proposedBurr Oak No. 6 Mineis consistent with the PBO. After reviewing site specific information, including 1) the scope of the project, 2) the environmental baseline, 3) the status of the Indiana bat and its potential occurrence within the project area and surrounding Wayne NF land, 4) the effects of the action, and 5) any cumulative effects, it is the Service’s biological opinion that this project is not likely to jeopardize the continued existence of the Indiana bat.

Incidental Take Statement

The Service anticipates that the proposed action will result in the incidental take of 8.5 acres of forested habitat through activities associated withunderground coal mining.This anticipated level brings the cumulative total of incidental take for the implementation of the WNF’s Forest Plan to 18.85 acres for mineral development. This level is within the 25acres of incidental take anticipated in the PBO through September 2006 for this activity. As explained above, we determined that this level of anticipated and exempted take of Indiana bats from the proposed project, in conjunction with the other management actions taken by the WNF pursuant to the PBO to date, is not likely to result in jeopardy to the species (for further information, see pages 22-28 in the PBO).

We understand that the Forest Service is implementing all pertinent Indiana bat RPMs and implementing Terms and Conditions, specificallyconditions 5 and 7,stipulated on pages 36-40 of the PBO. These measureswill minimize the impact of the anticipated incidental take.

This fulfills your section 7(a)(2) requirements for this action; however, should the proposed project be modified or the level of take identified above be exceeded, the Forest Service should promptly reinitiate consultation as outlined in 50 CFR 402.16. As provided in 50 CFR §402.16, reinitiation of formal consultation is required where discretionary Federal agency involvement or control over the action has been retained (or is authorized by law) and if: (1) the amount or extent of incidental take is exceeded; (2) new information reveals effects of the continued implementation of the Wayne National Forest Land and Resource Management Plan (as amended) and projects predicated upon it may affect listed species in a manner or to an extent not considered in this opinion; (3) the continued implementation of the Wayne National Forest Land and Resource Management Plan (as amended) and projects predicated upon it is subsequently modified in a manner that causes an effect to Federally-listed species not considered in this opinion; or (4) a new species is listed or critical habitat designated that may be affected by the action. In instances where the amount or extent of incidental take is exceeded, any operations causing such take must cease, pending reinitiation. Requests for reinitiation, or questions regarding reinitiation, should be directed to the U.S. Fish and Wildlife Service’s Reynoldsburg, Ohio Field Office.

We appreciate your continued efforts to ensure that this project is consistent with all provisions outlined in the PBO. If you have any questions regarding our response or if you need additional information, please contact Sarena Selbo at extension 17.

Sincerely,

Mary M. Knapp, Ph.D.

Supervisor

cc: Dan Schrum, Office of Surface Mining

Scott Stiteler, ODNR – Mineral Resources Management